United States v. Grey

Appeal
from the United States District Court for the District of
Columbia (No. 1:13-cr-00031-1)

Tony
Axam Jr., Assistant Federal Public Defender, argued the cause
for appellant. With him on the briefs were A.J. Kramer,
Federal Public Defender, and Rosanna M. Taormina, Assistant
Federal Public Defender.

Christopher R. Howland, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Jessie K. Liu,
U.S. Attorney, and Elizabeth Trosman and Jonathan P. Hooks,
Assistant U.S. Attorneys.

Before: Tatel, Srinivasan, and Millett, Circuit Judges.

TATEL,
CIRCUIT JUDGE.

Want to
buy a luxury car at a great price? Appellant Benjamin Brandon
Grey had a deal for you: go to a bank, take out a loan (or
several), hand him the money, and you get your car. But
Grey's offer had a serious hitch: he kept the money and
you never got a car, for which a jury convicted him of
twenty-one counts of bank fraud and other offenses. On
appeal, Grey challenges the district court's admission of
(1) evidence of a judgment in a related civil case, (2)
evidence of uncharged acts under Federal Rule of Evidence
404(b), and (3) evidence of the financial damage that
Grey's scheme inflicted on his would-be customers. Grey
also argues that his trial counsel's representation was
ineffective. For the reasons that follow, we affirm his
conviction and deny his ineffective-assistance claim.

I.

At
Grey's four-day jury trial, the government offered the
following evidence:

Hector Williams Jr. testified that Grey, whom he had met
through a mutual acquaintance, claimed to be a car dealer
able to buy luxury cars at low prices, and that he could get
Williams a good deal on a BMW. Following several weeks of
discussion, Grey claimed to have purchased a BMW and gave
Williams a buyer's order for the car. Order in hand,
Williams took out a $35, 000 loan from his credit union, and
gave Grey the money, which Grey deposited in his bank
account. Grey never delivered a car. After repeatedly
contacting Grey, who offered a variety of excuses, Williams
filed a police report and sued Grey in D.C. Superior Court.
Grey failed to appear, and the court entered a default
judgment. Williams testified that because he was unable to
make payments on his loan, his credit union "end[ed] up
suing [him]" and "won." Trial Tr. 267 (Sept.
16, 2013); see id. at 219-67.

Another
witness, Jennifer Bertelsen, testified that Grey, with whom
she was romantically involved, claimed to own Planet Cars, a
business through which he bought cars and resold them at a
profit. He urged her to take out loans, which he would use to
buy cars to resell, and then split the profits with her.
Though "skeptical, " Bertelsen testified that she
was "in love so [she] trusted him" and took out
three loans from three different banks for some $30, 000 each
and then signed the three checks over to Grey. Trial Tr. 116
(Sept. 17, 2013). Grey deposited the money in his bank
account and gave Bertelsen buyer's orders describing the
vehicles she was ostensibly purchasing through Planet Cars.
Bertelsen's relationship with Grey ended, and she never
received any money. At trial, Bertelsen testified that she
was forced into bankruptcy due to her inability to repay the
loans. See id. at 102-70.

Ronny
Fernandez, a high school friend of Grey's, testified that
Grey told him about Planet Cars, offered to sell him a BMW,
and gave him a document purporting to be the car's title
and listing Planet Cars as the owner. In response to
Fernandez's "concern[]" about the transaction,
which would involve taking out a loan from a credit union,
Grey explained that "because it's a federal credit
union . . . if he didn't give [Fernandez] the car or
[the] money . . . it would be a federal offense." Trial
Tr. 104-05 (Sept. 18, 2013). Reassured, Fernandez took out a
$30, 000 loan and gave the money to Grey, who deposited it in
his bank account. Grey neither delivered a car nor refunded
the money. Fernandez sued Grey, but dropped the suit when
Grey warned that "if [Fernandez] take[s] him to court,
it's a federal offense and [Grey will] be in jail and
then he won't be able to give [Fernandez] [his] money
back." Id. at 116. Grey then offered Fernandez
a second deal: if he allowed Grey to list him as a founder of
GreyMaxx, another company through which Grey was seeking to
buy and sell cars, he would return the money. Fernandez
agreed, but Grey neither involved him in GreyMaxx nor repaid
the money. Fernandez attempted to pay off his loan to
preserve his credit but was ultimately unable to do so,
leading his bank to increase the interest rate. Fernandez
testified that his debt "put [him] on edge" and
that he "ended up losing [his] job being so stressed
out." Id. at 118; see id. at 93-120.

William
Hill, who had met Grey through a mutual friend, testified
that Grey also offered him an opportunity to invest in
GreyMaxx. Hill agreed and gave Grey $34, 000, after which
communications with Grey tapered off and ultimately ended.
Grey never returned the money. See id. at 193-216.

The
government called seven employees of the banks and credit
unions where the relevant transactions occurred. They
described each of the loans and the corresponding deposits in
Grey's bank accounts. Together with this testimony, the
government introduced into evidence the associated loan
applications, security agreements, checks, deposit slips, and
...

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